Law Firm ELD Partners

[Defendant-Appellant]

1. Case summary and key issue

A. According to the reasoning of the lower judgment, the following circumstances are revealed. (1) On February 14, 2013, the Plaintiff, a doctor of the Plaintiff, instructed Nonparty 1 to issue a prescription to three persons, including Nonparty 2, by telephone without a hospital operated by himself. Accordingly, Nonparty 1 issued a prescription (hereinafter referred to as “instant violation”). Nonparty 1 received an investigation into the instant violation, and Nonparty 2 and three persons, including Nonparty 2, were provided with an order to prescribe the same as the Plaintiff prescribed before the Plaintiff. Accordingly, the Plaintiff, a doctor, issued a prescription to the patient on the Plaintiff’s computer, and then issued a prescription to the patient. (2) The Plaintiff was sentenced to a fine of KRW 106,00,00,000,000 to KRW 27,000,000,000,000,000,000,000,000,000).

(3) On January 10, 2017, the Defendant rendered the instant disposition ordering the suspension of qualification two months and ten days of qualification for a doctor’s license, citing the following: “The instant violation against the Plaintiff was committed by Nonparty 1, who is not a medical personnel, to conduct medical practice; thus, it constitutes a violation of Article 27(1) of the former Medical Service Act.”

B. The key issue of the instant case is whether the instant violation constitutes a violation of Article 27(1) of the former Medical Service Act.

2. Relevant provisions and legal principles

A. The main text of Article 17(1) of the former Medical Service Act provides that a medical doctor, dentist, or oriental medical doctor, other than a medical doctor, dentist, or oriental medical doctor, shall not prepare and deliver a medical certificate, death certificate, certificate, or prescription to the patient. This is to indicate the judgment of the medical person based on the result of a medical examination or autopsy conducted by a doctor, etc., and to ensure that only a doctor, etc., who directly conducted a medical examination and autopsy for the purpose of ensuring accuracy and reliability of the determination is able to prepare and deliver the medical examination and examination to the patient. Therefore, if a medical doctor, etc. displayed a medical certificate, death certificate, certificate, or prescription to the patient as an object of a medical examination and prepared and issued it, it does not constitute a violation of Article 17(1) of the former Medical Service Act (see, e.g., Supreme Court Decision 201Do12608, Dec. 22, 2017).

Article 12(1) of the former Enforcement Rule of the Medical Service Act (Article 17(5) of the former Medical Service Act) delegated by Article 17(5) of the former Medical Service Act.

2. According to Article 282 of the Ordinance of the Ministry of Health and Welfare, when a doctor or dentist issues a prescription to a patient, he/she shall enter the name, quantity, usage, and volume of the drug in the prescription form No. 9, and then affix his/her signature or seal thereto. The attached Form No. 9 requires that the name of the drug, the quantity of the drug per time, the number of administration per day, the total number of administration days, etc. be stated.

B. Article 27(1) of the former Medical Service Act strictly prohibits non-licensed medical practice by allowing only medical personnel to perform medical practice, and allowing only licensed medical personnel to perform medical practice. The term “medical practice” refers to: (a) prevention or treatment of diseases by conducting diagnosis, autopsy, prescription, medication, or surgical treatment based on medical expertise and skills based on the experience and function thereof; and (b) other acts that are likely to cause harm to public health and sanitation if not performed by medical personnel (see, e.g., Supreme Court Decision 2017Do19422, Jun. 19, 2018).

C. Article 17(1) of the former Medical Service Act provides that a person who violates Article 17(1) shall be punished by imprisonment with prison labor for not more than one year or by a fine not exceeding five million won (Article 89), while a person who violates Article 27(1) shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 20 million won (Article 87(1)2) of the former Medical Service Act. In addition, Article 68 of the former Rules on Administrative Dispositions Related to Medical Services (amended by Act No. 1168, Mar. 29

Article 4 of the former Medical Service Act (amended by Ordinance of the Ministry of Health and Welfare No. 190) [Attachment Table] provides that the suspension of qualification shall be imposed for two months in cases where a medical person issues a prescription in violation of Article 17(1) of the former Medical Service Act (Article 27(1) of the former Medical Service Act). In addition, Article 17(1) and Article 27(1) of the former Medical Service Act (amended by Ordinance of the Ministry of Health and Welfare) provides that the suspension of qualification shall be imposed for three months in cases where a medical person, other than a medical person, engages in an unlicensed medical practice in violation of Article 27(1) of the former Medical Service Act (Article 27(1) of the former Medical Service Act). As such, Articles 17(1)

3. Determination as to the instant case

A. Examining these facts in light of the relevant provisions and legal principles as seen earlier, the following determination may be made.

(1) Since the three non-party 2, etc. were patients who were issued a prescription after undergoing a medical examination by the plaintiff before the plaintiff, if the plaintiff directed the non-party 1, a doctor, to the non-party 2, etc. to the same prescription as that of the previous prescription, barring any special circumstance, the content of the prescription was specified, and the content of the prescription should be deemed not to have been determined by the non-party 1 but by the plaintiff, who is a doctor.

(2) Even if the Plaintiff instructed Nonparty 1 to prepare and issue a prescription without checking the status of directly communicating with Nonparty 2 and other three patients, it does not constitute a violation of Article 17(1) of the former Medical Service Act, which provides that the Plaintiff shall not directly examine and issue a prescription, etc. to the patient, apart from the fact that there is a violation of Article 17(1) of the former Medical Service Act, which provides that the Plaintiff shall not issue a prescription, etc. to the patient.

(3) Inasmuch as a physician determines the content of a prescription and instructs the preparation and issuance thereof, the act of preparing and issuing a prescription to a patient by a nurse or assistant nurse according to such doctor’s instructions cannot be deemed as constituting an unlicensed medical act prohibited by Article 27(1) of the former Medical Service Act.

B. Nevertheless, the lower court determined that the Plaintiff violated Article 27(1) of the former Medical Service Act by ordering Nonparty 1, who is not a medical person, to prepare and issue an essential prescription that is allowed only to the medical person, on the grounds that the Plaintiff’s instruction to Nonparty 1 was not a detailed instruction for the preparation and issuance of a prescription. In so determining, the lower court erred by misapprehending the legal doctrine on non-licensed medical practice under Article 27(1) of the former Medical Service Act, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan of the District Court